Federal Court of Justice: Agreement on brokerage commission completely invalid

Judgment of 6 March 2025 – I ZR 138/24

The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for brokerage law, has decided that a regulation requiring the buyer of a property to pay the brokerage fee in full violates the principle of 50/50 division enshrined in Section 656d of the German Civil Code (BGB) and is therefore void. This applies in particular if the broker was acting exclusively for the seller.

facts

The plaintiffs purchased a semi-detached house, with the seller having commissioned the defendant brokerage company to broker the sale. The agreed brokerage fee was €25,000. The original purchase price was reduced by this amount. At the same time, the plaintiffs agreed to pay the broker a fee of the same amount, which was paid after the purchase contract was notarized. The seller did not pay. The plaintiffs are now demanding reimbursement of the amount paid.

course of the proceedings

The regional court granted the claim in full. On appeal, however, the higher regional court (OLG) ruled that the defendant only had to repay €12,500. Both parties appealed against this ruling: the plaintiffs demanded full reimbursement, while the defendant requested that the claim be completely dismissed.

decision of the Federal Court of Justice

The Federal Court of Justice overturned the Higher Regional Court's ruling and reinstated the first-instance ruling. This allowed the claim for reimbursement of the entire broker's fee.

According to the BGH, § 656d BGB is not only limited to agreements between the contracting parties of a real estate purchase agreement. The standard covers every contractual arrangement that grants the broker a claim for payment or reimbursement against a party to the purchase agreement that is not itself a contractual partner of the broker. This also includes agreements that oblige the buyer to pay the broker's fee even though the buyer did not conclude the brokerage agreement himself.

The decisive factor was that the seller did not actually make any payment despite the formal obligation to pay the broker's fee. Since the plaintiffs effectively paid the entire brokerage fee, the principle enshrined in Section 656d Paragraph 1 Sentence 1 of the German Civil Code was violated. Partial maintenance of the agreement was not permitted, so the entire arrangement is void. The plaintiffs are therefore entitled to a full refund of the €25,000 paid in accordance with Section 812 Paragraph 1 Sentence 1 Case 1 of the German Civil Code.